STARR
Judge.
This
case was ordered transferred from the Appellate Court for the
sole reason that this court disapproved of the mandate of
said court contained in its original opinion reversing the
award of the Industrial
Board of Indiana. That opinion was written by Judge Royse on
behalf of the Appellate Court and is found in 73 N.E.2d 494
495.
We
agree exactly with the original opinion except the mandate
found therein. We therefore adopt as our own and as part of
our opinion said original opinion of the Appellate Court
except the mandate contained therein, which is in words and
figures as follows:
'This
is an appeal from an award of the Full Industrial Board of
Indiana denying appellant compensation for injuries resulting
from an accident arising out of and in the course of his
employment by appellee.
'Appellee has raised several technical
objections to appellant's brief. We have experienced no
difficulty in understanding the question which appellant
raises. There has been at least a good-faith effort to comply
with the rules of the Supreme Court in the preparation of his
brief. Western Machine Works et al. v. Edwards Machine &
Tool Corporation et al., 1945, 223 Ind. 655, 63 N.E.2d 535;
Bryan v. Yoder et al., 1947, Ind.Sup., 71 N.E.2d
474.
'Under proper assignment of error appellant contends the
undisputed evidence discloses appellant was injured as the
result of an accident arising out of and in the course of his
employment by appellee, and therefore the award of the Full
Industrial Board is contrary to law. This requires a
consideration of the evidence. Appellant was the only witness
in this case. Appellee has not objected to or corrected the
condensed recital of this evidence as set out in
appellant's brief. Therefore we take it as correct. It is
as follows:
"Direct
Examination: About Feb. 26, 1946 I was manager of the Red
Front Grocery Store located at Mt. Vernon, Indiana and was
manager, butcher and anything that came handy, also unloading
trucks and everything. There were two employees in the store
besides myself. I was expected to do anything that happened
to come along.
"Part
of my duty was to assist in unloading purchases that came
into the store. On the 26th day of February a truck came in
and backed up to the unloading window and we had 1500 pound
bags of potatoes on there and I unloaded about three or four,
and about the fourth I felt this hernia give down completely.
The window was at the side of the rear and the truck was
backed up to the window. I was inside the store and the truck
man handed the sacks through the window, and I took them and
set them aside in the store. The driver set
the potatoes up on the window sill about a two foot drop from
the floor and I took them off and lifted them down to where I
set them about four feet to the side. The sacks weighed 100
pounds. I had a hernia which was a moderate hernia. I had it
all my life, didn't wear a belt. I felt a sharp pain and
it protruded to about three times its normal size. I sat down
the rest of the day and the next day I went to see Dr.
Oliphant and he advised me that an operation was the only
solution. I was operated on at St. Mary's Hospital at
Evansville by Drs. H. C. Ruddick and Oliphant.
"I
remained in the hospital 11 days. After I came out of the
hospital I was not able to work for three months. The doctor
released me on June 8th and I started training with the
railroad then as a telegraph operator and ticket agent.
"I
notified the Red Front Cash & Carry Stores of my injury
the next day after it occurred. The supervisor called me over
the phone and I notified them of my injury. The next day the
supervisor came down and I told him how it occurred. I told
him I would have to go to the hospital to be operated on, and
he told me to keep it quiet and not let anybody know about it
as he didn't want to worry the owner of the stores.
"I
paid Dr. Oliphant for his services $28.00 and $150.00 for Dr.
Ruddick. I paid the hospital $§06.55. I was unable to work
until June 8th and then I was not able to work at all but did
take this light job the latter part of June. I am now
completely healed.
"Cross-Examination:
The hernia was on the left side. I had had it as far back as
I can remember. It was a congenital hernia. I had unloaded
potatoes before for about 12 years. I had unloaded them in
the same way. Nothing unusual happened, such as the bag
slipping or falling. It was just as I lifted it off the
window, the weight of the bag. I first noticed it right after
it happened when I lifted the potatoes down. The boy in the
store had to finish unloading the trucks.
"I told Mr. Burton I was going to have to go
to the hospital and be operated on. Tom Lambert is president
and general manager of the defendant Red Front Stores. I
wrote to Mr. Lambert April 25, 1946 telling him I had been in
the hospital for an operation resulting from a strain
received while unloading one of the trucks at my store. I
told him I had informed Charles Burton of the accident and he
told me he couldn't do anything. He said I couldn't
draw compensation because I did not get hurt in the store. I
told him I did get hurt while unloading the truck. I told him
my hospital bill was $106.55 and my doctor bill $178.00. I
asked him to start proceedings on my compensation and
hospital and doctor bills, and asked him to write me and let
me know why he thought I was not entitled to compensation.
"Re-Direct
Examination: I first talked about my injury to Charles
Burton, the supervisor of the Indiana District of the stores
who visited the store and saw that they got what they wanted
and everything was in order. I told him I would have to have
the operation. He asked me not to tell anybody, not even the
truck drivers. I talked to Mr. Lambert by phone twice and
wrote him. He told me that it was in the hands of the
insurance company and gave me its name.' (Our emphasis).
'In considering the evidence in this case we are
cognizant of the well-established rule that this court will
not disturb a finding of fact made by the Industrial Board
unless the evidence with all inferences reasonably deducible
therefrom is of such conclusive nature as to force a contrary
conclusion.
'Indiana long ago adopted the majority rule, that where
an employee afflicted with disease received a personal injury
under such circumstances that he might have obtained
compensation under a Workmen's Compensation Act on
account of the injury had there been no disease involved, but
the disease is materially aggravated or
accelerated by the injury, resulting in disability or death
earlier than would otherwise have occurred, and the
disability or death does not result from the disease alone
progressing naturally as it would have done under ordinary
conditions, but the injury, aggravating and accelerating its
progress, materially contributes to hasten its culmination,
in disability or death, there may be an award under the
Workmen's Compensation Act. Burns' Ann.St. § 40-1201
et seq.; In re Bowers et al., 1917, 65 Ind.App. 128,
133, 134, 116 N.E. 842, and authorities there cited;
Indian Creek Coal and Mining Company v. Calvert et
al., 1918, 68 Ind.App. 474, 119 N.E. 519, 120 N.E. 709;
Puritan Bed Spring Company v. Wolfe, 1918, 68
Ind.App. 330,...
